Throughout the Cold War the planners were anxious to
ensure that any measures that had to be taken would be within the rule of law
and sanctioned by the appropriate authority. This lead to the preparation of
many new laws, some of which would have been completely unacceptable in
peacetime.

The government has a responsibility to
defend the state under its general duty of care. Many of these responsibilities
such as preserving the peace could be exercised using common law powers or the
body of powers loosely called the Royal Prerogative. This is ill defined and has
largely fallen out of use with the rise of Parliamentary democracy and specific
legislation. It certainly includes the power to make foreign policy and to
declare war. Some constitutional authorities suggest prerogative powers could be
used to legitimise virtually any action by the Government although they would
lack a democratic foundation. As an example, during the 1982, Falklands War
prerogative powers were specifically used to requisition British merchant ships
under an Order in Council.

However, a
full-scale war would need additional powers. In the months leading up to the
last war the Emergency Powers (Defence) Act 1939 was passed. This empowered the
Crown (in practice the Government) to make, by Order in Council, defence
regulations for the purpose of securing the public safety, the defence of the
realm, the maintenance of public order, the efficient prosecution of any war and
the maintenance of essential supplies and services. As well as general
regulations, some specific ones were made to control for example agriculture,
building societies, patents and trading with the enemy. The Act and its
regulations were repealed after the war but similar powers would again be needed
for a future war.

Consequently, a
series of draft laws were prepared in the late 1950s, the existence of which was
known only to a few senior officials. The key measure was the Emergency Powers
(Defence) Bill, which would have been, as far as home defence was concerned, an
enabling Act[1]
allowing Ministers to bring in detailed measures by Regulations. These
Regulations would be made law by Order in Council and would not require to be
debated in Parliament. They could consequently be implemented very quickly. The
Bill was not enacted in advance because this might mean one Parliament
determining the actions of a future one which was considered to be
unconstitutional. Instead, it was planned to push the Bill through all its
Parliamentary stages in a few hours as and when needed and the Regulations would
be issued straight after. However, Exercise Felsted in 1962 found that this was
unrealistic because for one thing it would take four days to print the
Regulations.

The key
provisions were the Defence (Machinery of Government) Regulations, which would
allow the functions and powers granted to individual ministers to be exercised
by any Minister and so legitimise regional government. The actual transfer of
power from the Parliamentary system of cabinet government to the War Cabinet and
the Regional Commissioners would be made by Royal Proclamation. The Regional
Commissioners would be appointed by the Queen (in practice the Prime Minister)
and receive full powers both to impose any existing law and also to deal with
new situations as they developed by making laws by Ordinance. This is an archaic
device usually only used for making laws in the Colonies whereby an authorised
person could simply announce what the law was.

The powers of
the Regional Commissioner would not be limited under the Regulations but in
practice certain areas of government would be “reserved to the centre” so that
foreign policy, prosecution of the war and the control of resources at a
strategic level would remain in the hands of the central government nucleus.
Additionally, Regional Commissioners would have to follow any policy directives
laid down by the central government before or after the attack. These powers
would continue until revoked by the Queen or any Minister authorised by Her to
act on Her behalf. The Regulations were revised in the mid-1960s and a measure
introduced so that the powers would cease 6 months after a resolution by both
Houses of Parliament.

Other
pre-drafted Regulations included –

·The
Defence (Public Safety) Regulations that allowed for such things as the
prevention of interference with essential services and the control of
newspapers and other means of communication.

·The Defence (Essential Supplies, Works and Services)
Regulations that would give the power to control all land and
property, industry and transport.

·The
Defence (Public Safety and Order) Regulations that were concerned with such
matters as public shelter, the control of lighting and sound and the
restriction of the public electricity supply.

·The
Defence (Births, Marriages and Deaths) Regulations.

·The
Defence (Cash) Regulations

The Defence (Cash)
Regulations were drafted in 1963 with the aim of limiting withdrawals of cash
from banks to prevent a breakdown of cash supplies which might lead to a failure
of confidence in the currency. The Regulations would however not restrict
transactions by cheque. This measure was seen as an alternative to maintaining
large reserves of cash to meet a run on the banks in the precautionary period.
The Regulation was drafted and a printed copy prepared but it was then
apparently forgotten until 1969 when the issue was again raised and it was
found, no doubt in a filing cabinet.

These measures which were revised
periodically were drafted specifically to deal with a nuclear war, but
increasingly from the 1970s the planners had to consider the period not just
before a nuclear attack but also during the period when the crisis was
developing.

The problem of transition to war

During a crisis period, the Government’s
message would be one of “business as usual”, which might be better described as
one of “don’t panic”. All the normal peacetime activities would be expected and
encouraged to continue as usual, but alongside them, and perhaps secretly, the
country would be prepared for war. Some of the preparations would soon start to
conflict. Officials in both central and local government would have to do both
their normal work and prepare war plans. Then, as the crisis deepened, many
staff would need to move to RGHQs, RECs and Emergency Centres. More overt things
would start to happen – schools would close, hospital patients discharged and
prisoners released[2].
Civilian resources, particularly relating to transport would be increasingly
directed to the military effort.

The civil and military authorities would
soon find that their peacetime powers were inadequate. They would need to raise
and spend money that had not been budgeted for, to acquire new physical assets,
to take over private property and do many things such as arresting dissidents
and directing workers that the existing laws did not cater for.

During Exercise Vireg in 1986
and the regional exercises that followed it local authority players frequently
asked for additional powers notably to requisition property or to spend extra
money. The response from the directing staff from the Home Office was generally
vague, repeating what was said in EPGLA which suggested that in a war-emergency
the government might seek emergency powers comparable to those used during the
Second World War to secure the defence of the country and its people, and to
ensure that essential services, supplies and resources were maintained. EPLGA
said it would be difficult to speculate precisely what powers Parliament would
grant or the government would seek at the time and the Home Office said this was
the reason for not being more forthcoming. This approach was however
disingenuous, as the Home Office had already publicly admitted that emergency
legislation existed in draft form. The real reason was more likely a reluctance
to disclose what, of necessity, would be a very draconian series of additional
powers. EPLGA however told the emergency planners to make their plans on the
basis that they would be given the necessary powers to “permit the full
execution of their essential wartime plans…” In specific terms, it mentioned
“powers to control the use of land and buildings, to requisition certain
essential supplies and take control of certain essential local services….”
Exercise Hard Rock planned for 1982 had assumed that County Controllers were
given powers to requisition premises and goods in the conventional war period.

EPGLA also said the powers which
might be sought “to secure an effective transition to war and the defence of the
country…” might include “measures (some of which might be delegated to local
authorities) to counter espionage and sabotage, to ration food, to requisition
ships, vehicles and aircraft and other resources for the protection of the
population.” It added that in the event of nuclear attack legislation would be
needed to give the Regional Commissioner the internal powers of central
government and for the emergency arrangements for local government.

In reality, there is a large
body of legislation already in existence that the government could use in an
emergency. The Energy Act 1976 for example gives the Secretary of State the
power to make Regulations to control the production, distribution and use of
fuels and electricity. Similarly, the Civil Aviation Act 1976 allows the
Government in time of emergency to take possession of the aircraft and other
assets of any British air transport business. The Railway Act also allows the
Secretary of State to effectively take control of the railways in a time of
hostility or national emergency. When the local authority players in Exercise
VIREG asked about spending extra money they were told the councils already had
powers to do so in an emergency under S138 of the Local Government Act 1982.

Beyond these powers are more wide ranging
ones. The Emergency Powers Act 1920 which, according to its preamble, is “An Act
to make exceptional provision for the Protection of the Community in Cases of
Emergency”, allows the Queen, or in effect, the Cabinet, to proclaim a State of
Emergency if it appears that the community is about to be deprived of the
“essentials of life“ because of interference with the “supply and distribution
of food, water, fuel or light, or with the means of locomotion.”. Regulations
could then be made under the Act “…as His Majesty may deem necessary for the
preservation of the peace, for securing and regulating the supply and
distribution of food, water, fuel, light and other necessities, for maintaining
the means of transit or locomotion, and for any other purposes essential to the
public safety and the life of the community…”. The only restriction on the use
of such powers would be the need for Parliament to approve the Regulation within
seven days.

In an emergency troops could be deployed
under the duty of the Crown to aid the civil authorities and acting under
prerogative powers. But more formally, the Emergency Powers Act 1964
specifically allows service personnel to be temporarily engaged in urgent work
of national importance.

Although these powers existed, the
expectation was that special legislation would be passed through Parliament to
give the Government any powers it was likely to need before and after a nuclear
attack. By 1980 it seems that the existing draft laws were out of date, perhaps
because for example they did not deal with the need to assist allied, and in
particular US forces which would be based in or pass through the UK in a crisis.
New laws were therefore drafted.

Emergency Powers Bills

The contents of the resulting 3 Emergency Powers Bills
was never made available to the public or even the local authority planners
although some senior designated regional staff were briefed on them. The Bills
corresponded roughly to the 3 stages expected to be used in the national
transition to war preparations -

Stage 1 (review period) would be a review of plans
including any necessary revision and updating. This stage would be low-key and
largely covert. Only a few people in each department or service would be
involved.

Stage 2 (preparatory period)
would involve taking more overt preparatory measures but without causing
excessive disruption of services or exciting undue public anxiety. Government
departments would man their offices on a 24-hour basis, key staff would be
briefed and designated wartime staff informed of their roles. Wartime
headquarters would be brought to operational readiness and communications
systems, including the attack warning system tested and made good where
necessary. The armed forces and the Royal Observer Corps would be mobilised.
Government Ministers would make frequent broadcasts in an attempt to re-assure
the public.

Stage 3 (activation period)
would require the implementation of all the plans to fully implement local
authority and other organisations’ war measures. All wartime headquarters would
be fully manned. Local authorities would set up and staff rest centres and
emergency feeding centres. The media would be saturated with advice to the
public. This stage would possibly require wide ranging emergency legislation for
example to cover requisitioning of private property.

The 3 Bills appear to have been
essentially enabling ones that would allow pre-drafted Regulations to be
implemented. The first bill, The Special Powers Bill covered the protection of
certain vital installations such military and civilian key points, powers to
stop, search and arrest, restrictions on crews of ships and aircraft, and
compensation.

The Readiness Bill then covered general
preparation for war notably the military reinforcement of Europe and the control
of essential services and supplies. The proposed Regulations would build on
those of the first bill and then cover requisitioning of property, land,
vessels, aircraft and vehicles, stopping essential workers leaving their
employment, widening the role of the armed forces and fire service,
re-organising the National Health Service, the control of essential services and
supplies, control of air, sea and land transport, direction of postal and
telecommunications services, the regulation of money, regulation of movement,
extra police powers and, again, compensation.

The third bill was The General Bill. It
covered the final stages needed to put the country onto a war footing including
laying the legal foundations for regional government and the powers of the
Regional Commissioner. Its regulations would incorporate and expand on the stage
two regulations and in addition included powers to control labour, control the
BBC[3]
and IBA, for the Defence of the Realm and Public Safety, for machinery of
government (i.e. regional government), the administration of justice, the
registration of births, marriages and deaths and compensation.

The assumption would be that in a crisis
period these bills would be passed through all stages of the Parliamentary
procedure to become acts within a matter of hours, or at least a few days. The
Regulations would be pre-drafted, and possibly pre-printed so they could be
brought into effect immediately. This however, assumes that both Houses of
Parliament were in session at the time. In a serious crisis, Parliament would be
recalled if in recess but this would again take time. The Regulations would then
have to be publicised and distributed. It seems unlikely that this could have
been done in the two days given in EPGLA for all the most important plans to be
operational.

During the regional local government
exercise Ninex held in 1988 various emergency measures were introduced by the
central government control point but not until well into the crisis and 7 days
after the reserve forces had been called up. The measures included the
appointment of county transport co-ordinators, power for counties to requisition
property (but only after they had explained what they wanted and why) and the
placing of key construction materials under government control. British Gas was
released from its statutory duty to supply gas, manpower controls were
introduced and all display and advertising lighting banned.

[1]
A Bill becomes an Act when it has passed through Parliament and becomes
law.

[2]
Exercise Hard Rock assumed that all but 1000 prisoners would be released
on parole.

[3]
This would formalise a long existing agreement between the government
and the BBC backed up by its Charter and statute under which the
Secretary of State can at any time take control of broadcasting if in
his opinion an emergency has arisen.